Siahaan v. Madrigal
| Decision Date | 05 October 2020 |
| Docket Number | Civil No. PWG-20-02618 |
| Parties | BINSAR RIONALD SIAHAAN Petitioner v. FRANCISCO MADRIGAL, ET AL. Respondents |
| Court | U.S. District Court — District of Maryland |
This case is before me on Petitioner Binsar Rionald Siahaan's ("Siahaan" or "Petitioner") Motion for a Temporary Restraining Order and Stay of Removal, as well as his Petition for a Writ of Habeas Corpus. Siahaan raises several claims, alleging that the Respondents1 have violated immigration regulations, the Fourth and Fifth Amendments to the United States Constitution, and several federal statutes and treaties. The Respondents filed an Emergency Motion to Dismiss and a Motion for Change of Venue.2 I held a September 14, 2020 telephone conference with the parties, after which I issued an order memorializing the Government's agreement not to remove Siahaan until after a ruling had been made on his TRO motion. The parties also set a briefing schedule, andthe Government then filed a response in opposition to Siahaan's motion. Siahaan filed a reply and I held an October 2, 2020 motions hearing via ZoomGov.
Siahaan seeks to remain in the United States while litigating his various motions pending before the Board of Immigration Appeals (BIA), which include a motion seeking to reopen his removal status, granting of his asylum claim, and for protection under the Convention Against Torture ("CAT"), and, if unsuccessful at the BIA, he seeks to remain in the United States while he appeals any adverse decision by the BIA to the Fourth Circuit Court of Appeals. The Government seeks to remove him immediately to his country of citizenship—Indonesia—and argues that I do not have subject matter jurisdiction to hear this case. For the reasons that follow, I find that I do have jurisdiction, and that the Petitioner has shown a substantial likelihood of prevailing on at least some of his claims, and that he would suffer irreparable harm if removed before his BIA proceedings have been resolved. I therefore will issue a preliminary injunction preventing the Government from removing him during the pendency of his motions before the BIA and any subsequent appeal to the Fourth Circuit, and requiring his return from the detention facility in Georgia (where he had been taken by Immigration and Customs Enforcement ("ICE") in preparation for his removal to Indonesia) to ICE custody in Maryland.
Siahaan has resided in the United States for over 30 years. He is law-abiding, having no criminal history. He is a devout Christian who volunteers at and resides in a home located on the property of the Glenmont United Methodist Church in Silver Spring, Maryland. And he has a family here with his wife, Eko Dewi Rahayu Sukemi, and their two children, both of whom are American citizens. Petit.'s Mot. Mem. for TRO at 1-2 (ECF 2-1). Siahaan's case isn't the typical immigration habeas proceeding involving an individual charged with illegal reentry or convictedof a deportable offense: in 1989, Siahaan was admitted to the United States on an A-3 Diplomatic Attendant visa. Resp.'s Opp. at 2 (ECF. No. 14).3 As a non-immigrant visitor, he was permitted to remain in the United States until January 7, 1990. Id. However, he stayed beyond the permitted time and applied for asylum in 2003 before the United States Citizenship and Immigration Services ("USCIS"). Id. USCIS denied that application; on December 19, 2003, an Immigration Judge ordered Siahaan removed to Indonesia but allowed him to do so voluntarily within approximately two months. Id. Siahaan appealed the decision to the Board of Immigration Appeals ("BIA"), which denied his appeal and upheld the removal order on May 31, 2005. Id. Siahaan continued his efforts to remain in the United States, petitioning in the Fourth Circuit for a review of the BIA decision, which was similarly denied on February 13, 2006. Id. at 3. Upon the Fourth Circuit issuing its mandate, Siahaan was subject to a final order of removal. Id.
Siahaan's removal status remained dormant for several years, but on January 27, 2012, ICE detained Siahaan and released him on an Order of Supervision ("OSUP"). Id. While supervising Siahaan, ICE sought travel documents to effectuate his removal. On February 25, 2020, ICE revoked Siahaan's supervision, and in March 2020, Siahaan filed a motion to reopen his BIA proceedings. Id. Siahaan was released on supervision on April 3, 2020.
After his April release, ICE obtained valid travel documents for Siahaan to be returned to Indonesia; on September 20, 2020, ICE again revoked his release. Id. In effectuating the revocation, ICE agents first contacted Siahaan at his family home in Silver Spring, Maryland. Petit.'s Mot. Mem. for TRO at 1. The parties dispute whether the ICE agents who arrested Siahaan realized at that time that the house where he lives is located on church property (Petitioner claimsthat the Department of Homeland Security has a policy that prohibits arresting noncitizens who are located in "sensitive areas" like churches, Petit's Mot. at 11). Petit.'s Reply at 17; Ex. A to Petit.'s Reply at ¶ 4 (ECF No. 17-1); Ex. C to Petit.'s Reply at ¶ 3 (ECF No. 17-4). The agents told Siahaan that they needed to check his ankle monitor, but after entering his house and ordering him to get dressed, the agents handcuffed Siahaan and took him to the Baltimore Field Office. Petit.'s Mot. for TRO at 1-2. Upon arriving at the field office, Siahaan was informed that ICE had the requisite travel documents to effectuate his removal to Indonesia and that he would be removed from the United States. Id. Siahaan was again transported; he is currently detained at the Irwin County Detention Center in Ocilla, Georgia. Petit.'s Reply at 5.
Some additional background information is warranted regarding Siahaan's pending motion to reopen before the BIA. The motion, filed pursuant to INA §§ 240(c)(7), 240(c)(7)(C)(ii)4 and 8 C.F.R. § 1003.2(c), raises claims of ineffective assistance of counsel and changed circumstances in Indonesia that materially alter (and improve) his eligibility for asylum. Ex. B to Petit.'s Pet. for Writ of Habeas Corpus at 13 (ECF No. 1-2). Siahaan has requested relief on several grounds, including applying for withholding of removal under the Convention Against Torture ("CAT"). Id. Siahaan asserts that the CAT applies to his case because in Indonesia (a predominantly Islamic nation), Christians, like Siahaan, are suffering state-supported persecution. Counsel for Siahaan paints a picture of the violence Christians suffer, citing Human Rights Watch reports that Islamic groups threaten and intimidate Christians with violence. Ex. D to Petit.'s Pet. for Writ of Habeas Corpus at 7 (ECF No. 1-2). Siahaan asserts that Christians face "discrimination, intimidation, and violence," and also that Indonesia continues to endure long-simmering sectarian conflicts that further contribute to risk that he will face persecution if he is removed there. Ex. B to Petit.'s Pet.for Writ of Habeas Corpus at 18. He argues that if he were to be removed to Indonesia, he would almost certainly face persecution and violence due to his religious beliefs.
When Siahaan first sought asylum in the United States in 2003, this was not the case. Now, Siahaan contends that his life would be in jeopardy upon removal to Indonesia. Id. The Liggins Declaration, which the Government submitted as an exhibit to its Response, removes all doubt that "ICE intends to remove [Siahaan] in the coming weeks" unless this Court intervenes, and Siahaan will be removed to his home country of Indonesia. Ex. A to Resp.'s Opp. at 4, ¶¶ 20, 23.
I first will consider whether I have subject matter jurisdiction in light of 8 U.S.C. § 1252(g). While it might be hoped that this would be a straightforward exercise in statutory construction, aided by Supreme Court, Circuit and District court decisions that provide clear and consistent guidance, experience shows that it is anything but. A district judge that must make such a decision, usually in the time-sensitive environment of a TRO or Preliminary Injunction motion, must navigate through a succession of Congressional amendments to immigration laws, each of which undertook to narrow—if not outright strip—the courts of any authority to review the removal decisions of the Attorney General, look (sometimes in vain) for a controlling decision from his or her Circuit Court of Appeal,5 and try to make sense of legion inter-circuit and out-of-circuit districtcourt opinions that reach diametrically opposite results.6 Fortunately for me, my time-pressured journey through this statutory and decisional thicket was aided immensely by the thoughtful and lengthy decision from Judge M. Hannah Lauck, in Joshua M. v. Barr, 439 F. Supp. 632 (E.D. Va. 2020), to which I will refer frequently, and gratefully.
8 U.S.C. § 1252(g)7 aims to strip district courts from exercising jurisdiction to consider habeas petitions in connection with three types of decisions made, or actions taken by, the Attorney General that affect the status of noncitizens. It reads:
Except as provided in this section and notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.
8 U.S.C. § 1252(g). What matters most for purposes of the § 1252(g) analysis in this case is determining exactly what decision or action of the Attorney General Siahaan is challenging. TheSupreme Court has ruled that the statute strips courts of jurisdiction to decide challenges "only to three discrete actions that the Attorney General may take: her 'decision or...
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